1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please 2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 3 Please also note that this electronic memorandum opinion may contain computer-generated 4 errors or other deviations from the official paper version filed by the Court of Appeals and does 5 not include the filing date.
6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
7 STATE OF NEW MEXICO,
8 Plaintiff-Appellee,
9 v. NO. 28,680
10 SHAUN S.,
11 Child-Appellant.
12 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY 13 Sandra A. Price, District Judge
14 Gary K. King, Attorney General 15 Nicole Beder, Assistant Attorney General 16 Santa Fe, NM
17 for Appellee
18 Hugh W. Dangler, Chief Public Defender 19 Kathleen T. Baldridge, Assistant Appellate Defender 20 Santa Fe, NM
21 for Appellant
22 MEMORANDUM OPINION
23 GARCIA, Judge. 1 Shaun S. (Child) appeals from his conditional plea of guilty for conspiracy to
2 commit residential burglary after the children’s court division of the district court
3 denied his motion to suppress. We affirm.
4 BACKGROUND
5 On September 25, 2007, Deputy Scott went to Child’s home after the
6 department received a call from Child’s father. Child’s father informed the officer
7 that he did not want Child in his home. Deputy Scott then took Child to a crisis
8 shelter.
9 The following day while on patrol, Deputy Nyce was called to the scene of a
10 residential burglary. As part of his investigation of the burglary, Deputy Nyce went
11 to the shelter about 8:00 a.m. to speak with Child. Prior to talking with Child, Deputy
12 Nyce advised Child of his constitutional rights. Child then initialed each section of
13 and signed a written waiver of those rights. At that time, Child denied involvement
14 in the burglary. Deputy Nyce left the shelter and continued his investigation. About
15 an hour later, Deputy Nyce returned to the shelter and again spoke with Child. Deputy
16 Nyce did not re-advise Child about his rights at the second interview. At that time,
17 Child confessed in a formal statement to involvement in the burglary. Although
18 Deputy Nyce attempted to record his conversations with Child, the interviews were
19 not successfully recorded by his equipment. Deputy Nyce explained that he thought
2 1 the interviews were being recorded because he manually activated the recording
2 device in his car. Deputy Nyce did not realize that the interviews were not recorded
3 until an attorney informed him prior to the suppression hearing that there was no
4 recording of the interviews. Deputy Nyce further stated that he knew the law and was
5 trying to comply with the law requiring recordings.
6 Child moved to suppress his confession on the basis that Deputy Nyce failed
7 to record the interview in compliance with NMSA 1978, Section 29-1-16(A) (2006).
8 At the subsequent suppression hearing, the parties also discussed the effect of the one-
9 hour delay between the interviews. The district court denied Child’s motion to
10 suppress, finding that Child was not in custody during the interviews and that he was
11 read his constitutional rights and waived those rights. The court further found that
12 Deputy Nyce attempted to comply with the electronic recording requirements of
13 Section 29-1-16(A). Subsequent to the denial, Child entered into a conditional plea
14 agreement, admitted guilt to one count of conspiracy to commit residential burglary
15 and reserved his right to appeal the denial of his suppression motion. This appeal
16 followed Child’s plea agreement.
17 DISCUSSION
18 Standard of Review
19 “The standard of review for suppression rulings is whether the law was
3 1 correctly applied to the facts, viewing them in a manner most favorable to the
2 prevailing party.” State v. Jason L., 2000-NMSC-018, ¶ 10, 129 N.M. 119, 2 P.3d
3 856 (internal quotation marks and citation omitted).
4 No Error in Denying Motion to Suppress
5 Child argues that the district court erred because there were no facts
6 demonstrating that he knowingly, voluntarily, and intelligently waived his
7 constitutional rights before eventually giving his confession to Deputy Nyce. See
8 NMSA 1978, § 32A-2-14(D) (2003) (amended 2009) (stating that the state “shall
9 prove that the statement or confession offered in evidence was elicited only after a
10 knowing, intelligent and voluntary waiver of the child’s constitutional rights was
11 obtained”). Specifically, Child argues that the district court’s ruling was insufficient
12 because the record does not demonstrate that the court considered the Section 32A-2-
13 14(E) factors. See id. (listing factors for the court to consider in determining whether
14 a child knowingly, intelligently, and voluntarily waived the child’s rights).
15 Whether Child knowingly, voluntarily, and intelligently waived his rights based
16 on the factors outlined in Section 32A-2-14(E) was not raised by Child at the
17 suppression hearing. Child never asked the court to review the factors listed in
18 Section 32A-2-14(E) and make a determination as to the validity of the waiver on
19 those grounds. Child never contested the State’s evidence that he knowingly,
4 1 voluntarily, and intelligently waived his rights during the first interview. Since the
2 district court did not have an opportunity to rule on the issues now raised, we will not
3 review Child’s argument on appeal. See Rule 12-216 NMRA (stating that in order to
4 preserve a question for appellate review, “it must appear that a ruling or decision by
5 the district court was fairly invoked”); State v. Varela, 1999-NMSC-045, ¶ 25, 128
6 N.M. 454, 993 P.2d 1280 (“In order to preserve an error for appeal, it is essential that
7 the ground or grounds of the objection or motion be made with sufficient specificity
8 to alert the mind of the trial court to the claimed error or errors, and that a ruling
9 thereon then be invoked.” (internal quotation marks and citation omitted)).
10 Child next appears to argue that his confession should be suppressed because
11 he was not re-advised of his constitutional rights prior to being asked further questions
12 by Deputy Nyce one hour later. At the suppression hearing, there was a lengthy
13 discussion regarding the delay between the interviews. The district court ultimately
14 found that Child was advised of his rights and waived his rights prior to confessing
15 to the burglary. The conclusion that Deputy Nyce was not required to re-advise Child
16 of his rights prior to recommencing the interview is implicit in the court’s ruling. On
17 appeal, Child does not present authority disputing the correctness of the court’s
18 conclusion. In fact, Child acknowledges that warnings regarding constitutional rights
19 do not necessarily have to be given after each break in the interview process. See
5 1 State v. Gilbert, 98 N.M. 530, 533, 650 P.2d 814, 818 (1982) (holding that a second
2 full and fresh Miranda warning was unnecessary after a one-hour break in questioning
3 when the defendant was fully aware of his rights); see also United States v. Frankson,
4
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1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please 2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 3 Please also note that this electronic memorandum opinion may contain computer-generated 4 errors or other deviations from the official paper version filed by the Court of Appeals and does 5 not include the filing date.
6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
7 STATE OF NEW MEXICO,
8 Plaintiff-Appellee,
9 v. NO. 28,680
10 SHAUN S.,
11 Child-Appellant.
12 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY 13 Sandra A. Price, District Judge
14 Gary K. King, Attorney General 15 Nicole Beder, Assistant Attorney General 16 Santa Fe, NM
17 for Appellee
18 Hugh W. Dangler, Chief Public Defender 19 Kathleen T. Baldridge, Assistant Appellate Defender 20 Santa Fe, NM
21 for Appellant
22 MEMORANDUM OPINION
23 GARCIA, Judge. 1 Shaun S. (Child) appeals from his conditional plea of guilty for conspiracy to
2 commit residential burglary after the children’s court division of the district court
3 denied his motion to suppress. We affirm.
4 BACKGROUND
5 On September 25, 2007, Deputy Scott went to Child’s home after the
6 department received a call from Child’s father. Child’s father informed the officer
7 that he did not want Child in his home. Deputy Scott then took Child to a crisis
8 shelter.
9 The following day while on patrol, Deputy Nyce was called to the scene of a
10 residential burglary. As part of his investigation of the burglary, Deputy Nyce went
11 to the shelter about 8:00 a.m. to speak with Child. Prior to talking with Child, Deputy
12 Nyce advised Child of his constitutional rights. Child then initialed each section of
13 and signed a written waiver of those rights. At that time, Child denied involvement
14 in the burglary. Deputy Nyce left the shelter and continued his investigation. About
15 an hour later, Deputy Nyce returned to the shelter and again spoke with Child. Deputy
16 Nyce did not re-advise Child about his rights at the second interview. At that time,
17 Child confessed in a formal statement to involvement in the burglary. Although
18 Deputy Nyce attempted to record his conversations with Child, the interviews were
19 not successfully recorded by his equipment. Deputy Nyce explained that he thought
2 1 the interviews were being recorded because he manually activated the recording
2 device in his car. Deputy Nyce did not realize that the interviews were not recorded
3 until an attorney informed him prior to the suppression hearing that there was no
4 recording of the interviews. Deputy Nyce further stated that he knew the law and was
5 trying to comply with the law requiring recordings.
6 Child moved to suppress his confession on the basis that Deputy Nyce failed
7 to record the interview in compliance with NMSA 1978, Section 29-1-16(A) (2006).
8 At the subsequent suppression hearing, the parties also discussed the effect of the one-
9 hour delay between the interviews. The district court denied Child’s motion to
10 suppress, finding that Child was not in custody during the interviews and that he was
11 read his constitutional rights and waived those rights. The court further found that
12 Deputy Nyce attempted to comply with the electronic recording requirements of
13 Section 29-1-16(A). Subsequent to the denial, Child entered into a conditional plea
14 agreement, admitted guilt to one count of conspiracy to commit residential burglary
15 and reserved his right to appeal the denial of his suppression motion. This appeal
16 followed Child’s plea agreement.
17 DISCUSSION
18 Standard of Review
19 “The standard of review for suppression rulings is whether the law was
3 1 correctly applied to the facts, viewing them in a manner most favorable to the
2 prevailing party.” State v. Jason L., 2000-NMSC-018, ¶ 10, 129 N.M. 119, 2 P.3d
3 856 (internal quotation marks and citation omitted).
4 No Error in Denying Motion to Suppress
5 Child argues that the district court erred because there were no facts
6 demonstrating that he knowingly, voluntarily, and intelligently waived his
7 constitutional rights before eventually giving his confession to Deputy Nyce. See
8 NMSA 1978, § 32A-2-14(D) (2003) (amended 2009) (stating that the state “shall
9 prove that the statement or confession offered in evidence was elicited only after a
10 knowing, intelligent and voluntary waiver of the child’s constitutional rights was
11 obtained”). Specifically, Child argues that the district court’s ruling was insufficient
12 because the record does not demonstrate that the court considered the Section 32A-2-
13 14(E) factors. See id. (listing factors for the court to consider in determining whether
14 a child knowingly, intelligently, and voluntarily waived the child’s rights).
15 Whether Child knowingly, voluntarily, and intelligently waived his rights based
16 on the factors outlined in Section 32A-2-14(E) was not raised by Child at the
17 suppression hearing. Child never asked the court to review the factors listed in
18 Section 32A-2-14(E) and make a determination as to the validity of the waiver on
19 those grounds. Child never contested the State’s evidence that he knowingly,
4 1 voluntarily, and intelligently waived his rights during the first interview. Since the
2 district court did not have an opportunity to rule on the issues now raised, we will not
3 review Child’s argument on appeal. See Rule 12-216 NMRA (stating that in order to
4 preserve a question for appellate review, “it must appear that a ruling or decision by
5 the district court was fairly invoked”); State v. Varela, 1999-NMSC-045, ¶ 25, 128
6 N.M. 454, 993 P.2d 1280 (“In order to preserve an error for appeal, it is essential that
7 the ground or grounds of the objection or motion be made with sufficient specificity
8 to alert the mind of the trial court to the claimed error or errors, and that a ruling
9 thereon then be invoked.” (internal quotation marks and citation omitted)).
10 Child next appears to argue that his confession should be suppressed because
11 he was not re-advised of his constitutional rights prior to being asked further questions
12 by Deputy Nyce one hour later. At the suppression hearing, there was a lengthy
13 discussion regarding the delay between the interviews. The district court ultimately
14 found that Child was advised of his rights and waived his rights prior to confessing
15 to the burglary. The conclusion that Deputy Nyce was not required to re-advise Child
16 of his rights prior to recommencing the interview is implicit in the court’s ruling. On
17 appeal, Child does not present authority disputing the correctness of the court’s
18 conclusion. In fact, Child acknowledges that warnings regarding constitutional rights
19 do not necessarily have to be given after each break in the interview process. See
5 1 State v. Gilbert, 98 N.M. 530, 533, 650 P.2d 814, 818 (1982) (holding that a second
2 full and fresh Miranda warning was unnecessary after a one-hour break in questioning
3 when the defendant was fully aware of his rights); see also United States v. Frankson,
4 83 F.3d 79, 83 (4th Cir. 1996) (holding a two and one-half hour delay between
5 Miranda warning and interrogation did not compromise the initial warning). We will
6 not conclude that the district court’s conclusions were in error. See Rule 12-213(A)(4)
7 NMRA (stating that appellate arguments shall contain citations to applicable New
8 Mexico decisions); In re Adoption of Doe, 100 N.M. 764, 765, 676 P.2d 1329, 1330
9 (1984) (stating that an appellate court will not consider issues unsupported by
10 authority).
11 Child’s final argument is as follows: “Under the criteria set forth in Section 29-
12 1-16, both of Deputy Nyce’s custodial interrogations of [Child] were required to be
13 electronically recorded and no good cause was shown as to why neither interrogation
14 was recorded.” The premise of Child’s argument is that he was subjected to two
15 custodial interrogations, thereby triggering compliance with the electronic recording
16 requirements of Section 29-1-16. However, the district court found that Child was not
17 in custody as required to apply Section 29-1-16 and was interviewed during
18 investigatory detentions. Other than general assertions, Child presents no argument
19 or authority challenging the district court’s finding regarding the investigatory
6 1 detentions. See Rule 12-213(A)(4); In re Adoption of Doe, 100 N.M. at 765, 676 P.2d
2 at 1330. In addition, Child presents no authority that investigatory detentions entitle
3 a child to the same protection afforded during a custodial interrogation. Since the
4 premise of Child’s argument is based upon a custodial interrogation and is not
5 supported by the facts, Child’s argument relying upon a custodial interrogation under
6 Section 29-1-16 is not properly before this Court. Again, we decline to address the
7 argument.
8 CONCLUSION
9 We affirm the district court’s decision denying Child’s motion to suppress.
10 IT IS SO ORDERED.
11 ______________________________ 12 TIMOTHY L. GARCIA, Judge
13 WE CONCUR:
14 _________________________________ 15 RODERICK T. KENNEDY, Judge
16 _________________________________ 17 MICHAEL E. VIGIL, Judge